1. This is a second appeal by defendant against a decree of the lower appellate Court in favour of the plaintiff declaring that the plaintiff has acquired title by adverse possession to 8 biswas of land in plot No. 330 in Mahal Baru Mal, Mauza Koter contiguous to the abadi but not forming part of the abadi. The trial Court decreed in favour of the defendant. The Courts below have not however clearly stated how the case arose. The order of 28th April 1933 by an Assistant Collector shows that there was a suit for perfect partition of this Mauza Koter, whether of this mahal or of other mahals also is not stated, and in that partition case an objection was made by the plaintiff claiming proprietary title and his order is:
I direct the objector to file a declaratory suit in the civil Court within three months and get a declaration.
2. Now such an order is passed under Section 111, Land Revenue Act, on the objection by a recorded co-sharer in the Mahal which is the subject of the partition suit. If the plaintiff had not been a recorded co-sharer in that mahal then the claim would not have been the subject of an order of this nature as the order would probably have been that the partition Court would take no notice of the claim until it was established in a civil Court, but there would be no question of a limit of three months. Learned Counsel for the plaintiff-respondent also admitted that his client was a co-sharer in this mahal. In 1922 there was an exchange of this particular plot and it was given by Shakumber Devi to defendant 2 who is the contesting defendant and appellant. It has not been shown whether prior to that exchange the plot was in the same Khewat number in which the plaintiff is a co-sharer and this exchange was within 12 years of the suit in 1933. But it is apparently common ground that the plot is not now in the khewat number in which the plaintiff is a co. sharer although the plaintiff is a co-sharer in the mahal in which this plot is situated. The inspections and findings of the Courts below show that the plot is in proximity to the abadi and the facts found by both the Courts are that for more than 12 years the plaintiff has been tying his cattle on that plot and has also stored certain logs of wood on the plot, the logs merely lying on the ground and not in any house. At one time apparently the plaintiff did intend to make a house on the plot and he began certain foundations but he abandoned that intention many years ago and no house was erected and as the inspection note of the Munsif shows, those foundations are not visible on the surface but are covered over by the ground:
It was also admitted by the parties that on the north and on the east in the disputed land there are foundations of two walls which were never completed. At present the foundations are covered with earth.
3. Certain carts, charpoys and wooden cattle-troughs were also found on the ground and there were cattle tied to pegs, but the record is silent as to the number of cattle. Now the area of 8 biswas is 1/4 of an acre, in which there are 32 biswas and this area of 1/4 of an acre contains 1210 square yards : in other words the dimensions of the plot would be 30 yards by 40 yards. This is a very considerable area and it would require a great many cattle to cover that area. So it is apparent that if the plaintiff merely possesses a dozen or so of cattle, they would occupy only a small portion of the area. The question of adverse possession is a mixed question of law and fact and therefore it is for this Court in second appeal to decide whether on the facts found by the lower appellate Court the possession of the plaintiff has been such as would constitute adverse possession in law. Learned counsel for the plaintiff-respondent admitted that such possession must be open, exclusive and continuous. Now there is no doubt that the possession of the plaintiff has been found to be open and to be continuous. It remains to be seen whether the possession of the plaintiff can be said to be exclusive. Learned Counsel for the plaintiff relied on a ruling reported in H. Vekantakristanamachrylu v. Ismail Saheb (1913) 21 I.C. 765. That was a ruling in which the party claiming adverse possession had erected a tatti wall round a piece of land and made use of this area as his backyard, and it was held that this excluded the owner and did amount to adverse possession. But in the present case the wall which as originally intended by the plaintiff was not brought above ground and therefore there was no exclusion of the owner in the present case. It appears to me that having regard to the area of 8 biswas the mere presence of cattle for certain periods of the day when the cattle were not working in the fields and their presence at night would not exclude the defendant, the owner of the ground, from making the same use of the ground which he or his predecessors had made before the occupation of the plaintiff began. As the piece of ground was merely waste piece of ground adjoining to the house of the defendant the use which the defendant had previously made of the ground was apparently no more than to pass over it from his house. The presence of the cattle tied on portions of this considerable area would not in any way prevent the defendant from still continuing to pass over that piece of ground, nor would the presence of pieces of wood stored there by the plaintiff. There was therefore in my opinion no exclusion of the defendant or his predecessors by the acts of the plaintiff. On the other hand learned Counsel for the defendant-appellant relies on the following rulings : Framji Cursetji v. Goculdas Madhowji (1892) 16 Bom. 338. In that case there was occupation by the claimant for adverse possession by erecting a privy and sheds for his cows, goats, fowls, etc., and a hut for a ghariwallah, structures of a purely temporary character and it was held that such a user of the land, which was like the present uncultivated land, would not amount to any adverse possession.
4. In Chandan v. Bahadur A.I.R. 1922 Lah 82 it was laid down that the mere storage of bricks and wood and the tethering of cattle on a vacant site of a village would not constitute adverse possession. In Mansa v. Khushali Ram A.I.R. 1923 Lah 25 it was held that storing fodder and tethering cattle and grazing cattle on a piece of waste land did not amount to adverse possession. In this Court it has been held, in Lakhu v. Lal Singh A.I.R. 1923 All 399 by a learned Single Judge that even the enclosing of a plot of waste land for the purpose of keeping cattle in it would not amount to adverse possession against the zamindar. The well in that case was 1 1/2 feet in height and the material involved is not mentioned. In another case which came before me recently reported in Daya Shanker v. Debi Din : AIR1937All238 , the person claiming adverse possession had set up a tiled shed and kept coal and ashes in it and I held that such a construction did not amount to adverse possession but there was only a temporary occupation. For these reasons I consider that the decision of the Court below was not correct and that the plain, tiff has failed to establish that he had title by adverse possession. I may point out that the decision of this case is of very little Importance to the parties because even if it is held that the plaintiff has not got title to this portion of ground it is open to the revenue Court in making a partition to allot this particular plot to the plaintiff as part of the land to be put into his Kura. But I do not think that the revenue Court will give a larger share of the mahal to the plaintiff merely if he were able to establish title by adverse possession. The plaintiff and the contesting defendant are both co-sharers in the Mahal under partition and if for example the plaintiff's house were twice the size of the defendant's house, that fact would be taken into account in the area of the abadi to be allotted to each co-sharer, and the defendant would obtain an equivalent portion of the abadi on the ground that his house was smaller than the house of the plaintiff. But as the matter has been raised in the civil Court I decide in accordance with the principles of Civil law and I hold that the plaintiff has failed to establish a title by adverse possession, and therefore I allow this appeal with costs throughout and I dismiss the suit of the plaintiff. Permission is granted for a Letters Patent appeal.